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Fasano v. Battista

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 8, 2009

IN THE MATTER OF STEPHANIE FASANO, APPELLANT,
v.
MICHAELANGELO BATTISTA, RESPONDENT.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Singer, J.), dated October 24, 2008, as, without a hearing, granted that branch of the father's motion which was to dismiss her petition to modify a prior order of the same court (Kase, J.), dated June 27, 2006, inter alia, awarding sole custody of the subject child to the father, so as to award her sole custody of the subject child.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

WILLIAM F. MASTRO, J. P., ANITA R. FLORIO, RUTH C. BALKIN, JOHN M. LEVENTHAL, JJ.

(Docket No. V-00293/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

Contrary to the mother's contention, the Family Court properly dismissed, without a hearing, her petition to modify a prior order so as to award her sole custody. Where possible, custody should be established on a long term basis, "at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian" (Obey v Degling, 37 NY2d 768, 770; see Matter of Lopez v Infante, 55 AD3d 837; DiVittorio v DiVittorio, 36 AD3d 848, 849; Jackson v Jackson, 31 AD3d 386). A non-custodial parent seeking a change of custody is not entitled to a hearing without making some evidentiary showing sufficient to warrant a hearing (see Matter of Lopez v Infante, 55 AD3d at 838; Matter of Bauman v Abbate, 48 AD3d 679, 680; DiVittorio v DiVittorio, 36 AD3d at 849). Here, the mother failed to make such a showing.

We decline the father's request to impose sanctions against the mother.

MASTRO, J. P., FLORIO, BALKIN and LEVENTHAL, JJ., concur.

20091208

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